The Google-Microsoft patent war of words is continuing. Yesterday, Google (rightfully so, in my book) accused Apple, Microsoft, and Oracle partaking in an organised patent attack against Android, instead of competing on merit, claiming that they bought up Novell's and Nortel's patents solely to attack Android and its device makers. Microsoft struck back, claiming Google was offered to join in on the bids for the Novell patents, but rejected the offer. Google has now responded to this accusation - and to make matters even more confusing, Microsoft responded back. A public shouting match between two powerful parties? Count me in!

Setting aside the fact that software patents are abused, the real issue is with the USPTO.

They are self-funded based upon patent application and renewal fees, and the examiners are compensated based on the volume of patents they push through from the extensive backlog. There are no consequences for incorrectly issued or invalidated patents, other than the prospect of additional fees as the patent owners refile with adjusted claims.

Worse still, the government takes whatever they generate as general revenue, limiting the ability of the USPTO to at least re-invest surplus revenue for additional resources etc.

In other words, there is no incentive for quality control, only volume.

And yet the courts defer to the authority of the patent office and make defendants jump through hoops to try to invalidate the claims of a patent.

Quite frankly, Congress could ban software patents and the USPTO would probably still issue them in one form or another as patent holders learned to become savvier with wording the claims.

If the USPTO could be reformed one way or another so that they had the resources and incentive to properly vet and audit the claims of software/process patents, and could streamline the process of challenging or invalidating patents outside of a court, it could go a long way to fixing the current level of abuse. Without requiring legislative overhauls or legal precedents that are not likely to occur anytime in the short term.

Crowdsourcing could also be useful as part of the patent validation or invalidation process, if managed correctly.